The Common Law and the Classical Legal Tradition

A relationship with very deep roots

The New Digest is delighted to feature this guest post by Dr Lucas Clover Alcolea. Dr Alcolea is a Lecturer in Law at the University of Otago, New Zealand. His interest include legal history, international investment law, and legal theory. This post is based on a paper presented at the University of St. Thomas Journal of Law and Public Policy Symposium on Constitutionalism which will be published in 17:1 University of St. Thomas Journal of Law and Public Policy. The author would like to thank Professor Adrian Vermeule and Dr Conor Casey for their encouragement to publish this piece, as well as all those who read and commented on draft versions. Non nobis Domine.

This note aims to briefly outline the strong links between the common law and the classical legal tradition, i.e., law as it developed in the Graeco-Roman world and what later became known as Christendom. To do so it will first provide a brief overview of the classical legal tradition and then demonstrate how it was incorporated into the common law by both “eminent common law authorities”,[1] and early English and American case law.

A brief overview of classical legal theory

The classical legal tradition began, as any good theory does, by defining the terms at issue. Thus, Isidore of Seville stated that “Jurisprudence is a general term, and a law is an aspect of jurisprudence. It is called jurisprudence (ius) because it is just (iustus). All jurisprudence consists of laws and customs. A law is a written statute…for law (lex, gen. legis) is named from reading (legere) because it is written.” [2] Justice is of the very essence of law given that the general word for law was derived from it,[3] and the law was considered “a rule, it is thus that it rules, therefore if it is not in rectitude, it has lost its nature; an unjust law is crooked, therefore it is not a law.”[4] Law itself can be divided into three parts, natural law, civil law, and the law of nations. This division dates from the time of Ulpian[5] and maintained by later writers such as Isidore,[6] Gratian,[7] and Aquinas.[8]

Natural law

Turning first to natural law, Isidore defined it as the law which was “common to all nations, and, because it exists everywhere by the instinct of nature, it is not kept by any regulation”.[9] It included such things as the marriage of a man and woman, children’s right to inheritance and education, common possession of earthly goods, freedom, the right to original acquisition of things, “the return of something which was entrusted and of money which was deposited” and the right of self-defence. [10] Gratian built upon this definition arguing that the word was used in several senses, the most relevant for our purposes being “natural precepts such as ‘do not kill’, ‘do not commit adultery’” and so on.[11] The issue with natural law, if one can call it that, is that it “is of a general nature, and includes only certain self-evident principles of conduct” [12] whereas much more specific principles are required to govern a state and thus “it was necessary for human reason to determine more particularly certain points…a determination that is effected by means of human law.” [13] It is this determination which leads to the law of nations and civil law.

Aquinas developed the concept yet further dividing natural law into primary and secondary precepts, the former could be summed up as “good is to be done and pursued, and evil is to be avoided” and the latter “are based upon this…”[14] For our purposes, we need only note that, strictly speaking, only the primary principles of natural law are universal and unchangeable whereas secondary precepts are not, strictly speaking, universal given that they could be unknown or unobservable because “of certain obstacles…and [because] in some the reason is perverted by passion, or evil habit, or an evil disposition of nature.” ^[15] To illustrate this point Aquinas gives us the famous example of Julius Ceasar relating that the Gauls engaged in theft, even though this was contrary to natural law. ^[16] 

The Law of Nations

This can be defined as “those things which are derived from the law of nature, as conclusions from premises, e.g., just buying and sellings, and the like, which is a point of the law of nature, since man is by nature a social animal”[17] and it is this close relationship with the natural law which explains why it has been called ‘the law of nations’. Thus, Suarez states that “[it] has such a close relationship to nature and so befits all nations, individually and collectively, that it has grown, almost by a natural process, with the growth of the human race” that various nations adopted it either of themselves or in imitation of others.[18]

The Civil Law

On the other hand, the civil law is derived from those “things which are derived from the law of nature by particular derivation…according as each state decides on what is best for itself.”[19]  It can therefore be considered ‘arbitrary’ as a “particular determination might reasonably have taken one of various forms, and because there is frequently no ground on which one form should be preferred to another”[20] with the result that the choice which a state, or rather its sovereign, makes for X or Y determination is in accordance with their will rather than necessity. Given that the civil law is several steps removed from the natural law it is natural that it should be read as against the law of nations, as well as natural law, and additional requirements imposed on it to account for the possibility of error, or a deliberate choice to contradict the former types of law. Thus, Isidore and, following him, Gratian hold that “A law should be honorable, just, feasible, in agreement with nature, in agreement with the custom of the country, appropriate to the place and time, necessary, useful, and also clear, lest in its obscurity it contain something deceitful, and it should be written not for private convenience, but for the common benefit of the citizens.”[21] This reference to ‘common benefit’ can be considered simply another way of referring to the ‘common good’ and thus Aquinas states that law “is nothing else than an ordinance of reason for the common good, made by him who has care of the community, and promulgated.” [22] The importance of this condition is such that Suarez held that “The other characteristic conditions of law depend upon this characteristic”[23] and proceeded to dedicate a chapter[24] to the argument that “it is inherent in the nature and essence of law, that it shall be enacted for the sake of the common good.”[25]

In addition, the derivation of civil laws from natural law means that “every human law has just so much of the nature of law, as it is derived from the law of nature. But if in any point it deflects from the law of nature, it is no longer a law but a perversion of law.”[26] Gratian likewise notes that “whatever has been either received in usages or set down in writing is held to be null and void if it is contrary to natural law”,[27] and elsewhere states “that enactments also yield to natural law is proved by many authorities.”[28] This brings us to the vexed, and perhaps overly analysed, problem of unjust laws. The classical legal thinking on this point can be summed up, very briefly, as follows:  i) An unjust law is not really a law,[29] but merely “partake[s] of the name of law by analogy (so to speak) in so far as it prescribes a certain mode of action in relation to a given end”, ^[30]  ii) nevertheless such laws should be obeyed “to avoid scandal or disturbance”[31] even if this results in “some temporal damage”, [32] iii) however if such a law would require individuals to commit evil “it is on no account permissible to obey the law… since it is never permissible to do wrong for the sake of any end”. [33]

A brief overview of common law authorities

Reference to early common law authorities makes it clear that they too considered themselves part of the classical legal tradition. Thus, if we look at Bracton’s classical work on English law he defines law as “a general command, the decision of judicious men, the restraint of offences knowingly or unwittingly committed, the general agreement of the res publica.”[34] Here we see quite clearly that law cannot be for the private good, but rather for the common good (the res publica) and throughout his work Bracton follows the division of law into natural law, the law of nations, and civil law.[35] As with other authors in the classical tradition for Bracton justice is inherent to law, indeed Bracton goes as far as to say that “Justice proceeds from God…[jus from man], and thus jus and lex are synonymous.”[36]

Several centuries later John Fortescue addressed the matter in greater depth and, quoting liberally from Gratian’s Decretum, like him held that human laws are derived from or dependent on natural law, stating that “And whatever other laws there are, called human, they are either by this law established, or by its authority, as supplementary to it, they subsist.”[37] The parallels between his view and that of earlier authorities are evident, in particular when he states that “The Laws of England, as far as they agree with, and are deduced from, the Law of Nature, are neither better nor worse in their decisions than the laws of all other states or Kingdoms in similar cases.”[38] Elsewhere Fortescue explicitly states that unjust, or ‘despotic’, laws “better deserve to be called corruptions than laws”[39] in language very similar to that of Aquinas and others in the classical legal tradition. This also followed from the very etymology of the word ‘law’ as “ius is so called from iustitia, and is everything which is equal and good. But all such is not lex; nevertheless all law ought to be equal and good, otherwise it would not be a species of ius.”[40] Fortescue is likewise at pains to explain that the English legislative process ensures that English statutes are in accord with the common good as they are “not enacted by the sole will of the prince, but with the concurrent content of the whole kingdom, by their representatives in Parliament. So…it is morally impossible but that they are and must be calculated for the good of the people”.[41]

Christopher St Germain continued the tradition a century later noting that against natural law neither “prescription, statute nor custom may not prevail: and if any be brought in against it, they be not prescriptions, statutes nor customs, but things void and against justice. And all other laws…be grounded thereupon.”[42] St Germain categorises the type of natural law we are concerned with as ‘the law of reason’,[43] to distinguish it from the laws which govern unreasonable creatures, i.e., other animals. Understanding this we can understand that he agrees with his forefathers regarding the derivation of positive law from natural law when he states that “in every law positive well made, is somewhat of the law of reason, and of the law of God”[44] or that “the first ground of the law of England is the law of reason”.[45] St Germain also provides a unique gloss of Isidore’s requirements for a valid law stating that “to every good law be required these properties…that it be honest, rightwise, possible in itself, and after the custom of the country, convenient for the place and time, necessary, profitable, and also manifest, that it be not capitous by any dark sentences, ne mixt with any private wealth, but all made for the commonwealth.”[46] St Germain likewise followed Aquinas in noting that natural law could be obscured by “evil customs”[47] and divided it into primary and secondary precepts noting that the former included “that good is to be loved, and evil is to be fled”. [48]

The next eminent common law authority to discuss the natural law was Sir Edward Coke and whilst he wrote only a century or so after St Germain his work marks a break with earlier legal writing as it did not follow scholastic methodology. Despite this, Coke, following the lead of St Germain, provided his own gloss on Isidore noting that “the law shall be honest, just, able to be complied with, in accordance with nature and custom, suited to the time and country, necessary and useful, also clear…not written for private advantage, but for the general benefit of the citizens”[49] and held that these were “excellent rules for all Parliaments to follow.” [50]  Coke’s successor, Sir Matthew Hale, continued in the same vein albeit being closer in substance to St Germain than Coke.  As with the Scholastics, Hale held that law was a rule,[51] specifically a “Rule of Actions Morall”[52], and reflecting Aquinas he argued that “[the] most universall and most remote from any particular determination to this or that particular action as that [the chief point of the first kind of the law of nature, the honorable must be embraced, the shameful must be avoided].”[53] Likewise Hale stated that the natural law was reflected in the law of all nations except those which had slipped into barbarism, echoing Aquinas’s famous statement concerning theft and the Gauls.[54]

The last great jurist we will mention is Blackstone who, in keeping with the classical nature, noted that “[the] law of nature, being co-eval with mankind and dictated by God himself, is of course superior in obligation to any other. It is being over all the globe, in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original.”[55] In consequence, as murder is prohibited by divine, and natural, law a positive law which commanded us to commit it would be invalid[56] and “if any human law should allow or [e]njoin us to commit it, we are bound to transgress that human law, or else we must offend both the natural and the divine.”[57] Nevertheless, Blackstone marks a break with that tradition by noting that if Parliament enacted a law contrary to natural law “I know of no power that can control it”.[58]

Classical legal theory in English and American case law

At this stage it is possible to turn to consider references to natural law in English and American case law. In general, it can be said that the use of natural law theory declined in England long before it did in the United States and for that reason each jurisdiction will be analysed separately below. Additionally, given the extremely large number of cases that invoke natural law theory this section will restrict itself to analysing those areas of law in which it was most prominent, namely, i) Family law, and, ii), Public Law.

England

Family Law

Family law is arguably the area of early English law which was most influenced by natural law, particularly in cases that involved children. Some cases concerning the law of settlements, a branch of the poor laws which regulated relief of the poor in England and the US for centuries,[59] are also subsumed within this section to the extent that they address the relationship and obligations between parent and child, or between husband and wife. For example, in the case of The Parish of St Gile’s in Reading v The Parish of Eversly, Blackwater[60] it was stated that “by the law of nature [parents] are to provide for their children, so that their settlement must necessarily depend upon that of their parents.”[61] Likewise in the case of The King and The Inhabitants of Paulsperry it was stated that a mother is “by the law of nature is as much oblig’d to take care of her children as a father is; and therefore they ought not to be removed from her.”[62] Moving to pure family law cases, Ex Parte Hopkins[63] involved a situation where an uncle effectively adopted his nieces allowing them to live with him and leaving them a significant sum of money after his death.[64] Subsequently, they remained living at her uncle's house with their uncle's cousin, who was the executor of the will, and the father raised a petition that the court should order that he be given guardianship of them.[65] The Court stated that “The father is entitled to the custody of his own children during their infancy, not only as guardian by nurture, but by nature; and it cannot be conceived that, because another thinks fit to give a legacy, though never so great, to my daughters, therefore I am by that means to be deprived of a right which naturally belongs to me, that of being their guardian.”[66] In Dalrymple v Dalrymple,[67] the Court held that marriage was governed by natural law noting that “Marriage in its origin is a contract of natural law; it may exist between two individuals of different sexes, although no third person existed in the world, as happened in the case of the common ancestors of mankind; it is the parent, not the child of civil society”.[68]

The case of Butler v Gastrill is more unusual concerning as it does incest, the court held that incest in the lineal line was “contrary to the Law of Nature, because it tends to the Destruction of the natural Will of the Creator, which designed the Preservation and Continuance of such Inhabitants of the world as he originally created; and all Acts of Men that tend to the Destruction of such Species…is said to be against the Law of Nature”.[69] The Queen v Barnardo[70] involved the founder of the Barnardo’s children’s charity in a dispute with a destitute mother who had given up her son to be looked after at his children’s home. Subsequently, the mother changed her mind and rescinded the agreement, Dr Barnardo refused to return the child and the Court held that “It is [the mother’s] undoubted right, if there is no father living, to have the company and care of, and the control over, her own child. That is the law of England, founded on the law of nature.”[71]

Public law

One of the earliest and best-known English public law cases concerning natural law is Calvin’s Case[72] which was heard by Coke. The issue in that case was whether one Robert Calvin, a Scot who was born after the accession of Charles I to the English throne, was an alien and therefore debarred from holding lands in England or whether he was a subject of the King and could therefore hold English lands.[73] Coke decided the case on natural law grounds holding that natural law is part of the law of England, and “was [both] before any judicial or municipal law [and]…immutable.”[74] An aspect of this natural law was “the faith, ligeance, and obedience of the subject due to his Sovereign or superior”[75] this being proven by the fact that “whatsoever is necessary and profitable for the preservation of the society of man is due by the law of nature: but magistracy and government are necessary and profitable for the preservation of the society of man; therefore magistracy and government are of nature.”[76] From this Coke reasoned that: i) as Calvin owed obedience and ligeance to the king by the law of nature, ii) the English and Scottish crowns were united in the person of the king, iii) Calvin was born “under one ligeance to one King”,[77] iv) he was not, therefore, an alien but rather a natural born subject,[78] and, consequently, v) could hold land in England. The case is remarkable for being reasoned almost entirely on natural law grounds,[79] and provides a powerful example of what deriving a positive law rule from natural law looks like in English law.

The next two cases, Thomas v Sorrell[80] and Hales Case[81] concerned the King’s power to dispense from certain laws, i.e., his power to “make the thing prohibited lawful to be done by him who hath it.”[82] English law limited the King's power as it drew a distinction between malum in se, that is things which are bad in and of themselves, and malum prohibitum, that is things which are bad only because they are prohibited by law. The King could dispense from the latter but could not dispense from the former given that they are “such things which by the law of God or nature are evil antecedently to any human law”.[83] Coke gave as examples the prohibitions against adultery and incest.[84] There are clear parallels between Coke’s statements and methodology and those of Aquinas when considering the question of dispensation vis-à-vis civil law[85] and the Decalogue.[86] Although the above cases arose in the context of the king, similar principles were also developed with regard to laws passed by parliament. Thus, in the famous, or infamous, Bonham’s Case[87] Coke stated that “in many cases, the common law will controul Acts of Parliament, and sometimes adjudge them to be utterly void: for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will controul it, and adjudge such Act to be void”.[88] Although Coke does not explicitly refer to natural law in Bonham’s case it would likely be encompassed within the concept of ‘reason’ given that English writers had come to refer to natural law as the ‘law of reason’. [89] In any event, the matter is set out unequivocally in Day v Savadge[90] where the court says “even an Act of Parliament, made against natural equity, as to make a man Judge in his own case, is void in it self, for jura naturae sunt immutabilia [the laws of nature are immutable] and they are leges legum [the law of laws].”[91]

Notwithstanding the fact that the dispensing power was abolished following the ‘Glorious Revolution’[92] and Coke’s view regarding the possibility of voiding statutes likewise fell out of favour[93] the concept of judges finding positive laws void due to conflict with natural law migrated to the United States, as will be shown below.

United States

Family law

As in English law, the principles of natural law were frequently referred to in US family law cases. For example, in the case of The Etna[94] a father purported to settle a suit by his son for delinquent wages and claim the settlement monies himself,[95] something a father could usually do,[96] but the father was abusive. Thus, the Court held that “neither the law of nature, nor the law of the state applies in favor of a parent, who being able to support himself, as this one was, and to contribute something at least to the well-being of his family…in the first disturbs and disquiets them by the abuse of his paternal power, and then abandons them to the care of themselves and to the charity of their neighbors”.[97] US law also treated incest as contrary to natural law, for example, the Court in Wightman v Wightman[98] stated that “marriage between persons in the direct lineal line of consanguinity…is criminal and void by the law of nature…And, by the law of nature, I understand those fit and just rules of conduct which the Creator has prescribed to man, as a dependent and social being; and which are to be ascertained from the deductions of right reasons, though they may be more precisely known, and more explicitly declared by divine revelation.”[99] The Court also explained in some detail how natural law was incorporated into the common law, stating that “Prohibitions of the natural law are of absolute, uniform, and universal obligation. They become rules of the common law, which is founded in the common reason and acknowledged duty of mankind, sanctioned by immemorial usage, and, as such, are clearly binding.”[100]

Similarly, New York long held that marriages from other states were to be considered valid “unless contrary to the prohibitions of natural law or the express prohibitions of a statute”[101] and indeed this natural rule was referred to as recently as 2008.[102] The duty of parents to provide for their children was likewise derived from natural law in Heath and wife v White[103] where it was stated that “the duty of parents to provide for the children, is a principle of natural law, enforced by the municipal laws of all well regulated states”.[104] A more explicit recognition of this point can be found as late in 1949 in the case of Schmidt v Schmidt[105] where the Court explained “Man-made law is the product of natural law, in the light of human experience there is nothing stronger than natural law – and natural law requires him who gives life to continue to maintain that life.”[106]

Public law

As with England natural law had a significant influence on US public law, however once the natural law tradition reached American soil it took a variety of novel directions. One of the most important, and earliest, was with regard to natural law protections for property as against governmental actions. For example, in Vanhorne’s Lessee v Dorrance[107] the Court declared that “the right of acquiring and possessing property, and having it protected, is one of the natural, inherent, and unalienable rights of men. Men have a sense of property: Property is necessary to their subsistence, and correspondent to their natural wants and desires; its security was one of the objects, that induced them to unite in society.”[108] Similarly, in Ex parte the South Carolina Rail Road Company[109] it was stated that “The right of property is so deeply and universally impressed on the minds of men, even the most barbarous, that it seems a law of nature”[110] with “the only exception to the absolute and exclusive dominion of the owner over his property [being] in favor of the sovereign power, for the purposes of public utility or necessity.” [111] It must be noted here that this exception can well be equated with the ‘common good’. However, natural law principles were not just incorporated into the common law to justify its protection, but also, counterintuitively to justify its destruction. Thus, in Surocco v Geary[112] the Court rejected a claim for compensation by an owner of property destroyed to prevent the spread of fire noting that “The common law adopts the principles of the natural law, and places the justification of an act otherwise tortious precisely on the…ground of necessity.”[113] This view was adopted by the Supreme Court itself in Bowditch v Boston[114] where it held that “At…common law every one had the right to destroy real and personal property, in cases of actual necessity, to prevent the spreading of a fire…In these cases the common law adopts the principle of the natural law, and finds the right and the justification in the same imperative necessity.”[115]

The derivation of rules from natural law was not, however, limited to cases concerning the protection of property. For example, in the case of People ex rel. O’Connell v Turner[116] the court referred to natural law principles concerning parental rights when considering the constitutionality of a law that allowed for children to be committed to reformatory schools against their parents will, even where they had not been found guilty of any crime. The court stated that “The parent has the right to the care, custody and assistance of his child. The duty to maintain and protect it, is a principle of natural law…Another branch of parental duty, strongly inculcated by writers on natural law, is the education of children.”[117] The law in question “conflict[ed] with the natural right of the parent” [118] and thus was found contrary to the Bill of Rights and therefore unconstitutional.[119] In Coger v Northwestern Union Packet Co,[120] the court used natural law to rule against racial discrimination, in the context of a black woman being removed from a whites-only table on a boat, holding that “The doctrines of natural law and Christianity forbid that rights be denied on the ground of race or color; and this principle has become incorporated into the paramount law of the Union.”[121]

Conclusion

It is to be hoped that by now the reader can see that the classical legal tradition is not something foreign to the common law, but rather an integral part of it and, in many respects, the latter is a successor to the former. More sceptical readers may consider this conclusion a stretch, and note that natural law, and classical legal sources, are relatively infrequently explicitly referred to in the common law. However, it is important to note that this is exactly what the classical legal tradition would expect. Positive law, such as the common law, is derived from natural law and, assuming that those derivations are correct, it would be vain to continuously refer back to the source of X derivations once one has correctly derived Y legal rule from it. This is particularly so as natural law is, as the classical legal tradition repeatedly emphasised, necessarily too general to be directly applied to resolve most legal questions whereas the law of nations will not touch on most domestic legal questions. In this context what is remarkable is not that there are so few references to natural law, and the classical legal tradition, but rather that centuries, or even millennia, after the common law derived particular legal rules from natural law, jurists continue to refer back to it at all.

The relevance of the classical legal tradition is therefore not to be, in a certain sense, a primary source of law but rather a framework within which to develop, and a check on, positive law as developed in particular states. In this sense the core of that tradition can be summed up in Isidore’s statement, oft-repeated over the millennia, that a law should be “honorable, just, feasible, in agreement with nature, in agreement with the custom of the country, appropriate to the place and time, necessary, useful, and also clear, lest in its obscurity it contain something deceitful, and it should be written not for private convenience, but for the common benefit of the citizens.”[122] Of these we can say that the “the greatest and the first commandment”[123] upon which all the others depend[124] is the requirement that law should be “for the common benefit [good] of the citizens.” [125] How different, and how much simpler, the law would be if judges and legislators remembered this!

---

[1] Dobbs, State Health Officer of the Mississippi Department of Health, Et al v Jackson Women’s Health Organization et al (2022) 597 US 2249.

[2] Stephen A Barney and others, The Etymologies of Isidore of Seville (Cambridge University Press 2006) para ii.

[3] Alan Watson, The Digest of Justinian, Volume 1 (REV-Revised, University of Pennsylvania Press 1998) bk 1 para 1.

[4] Fray Domingo De Soto, Tratado de La Justicia y El Derecho, vol I (D Jaime Torrubiano Ripoll tr, Editorial Reus (SA) 1922) 127; Francisco Suarez and Thomas Pink, Selections from Three Works (Liberty Fund 2014) 22.

[5] Watson (n 5) bk 1 para 1.

[6] Barney and others (n 4) para iv.

[7] Gratian and others, The Treatise on Laws (Decretum DD. 1-20) with the Ordinary Gloss (Studies in Medieval and Early Modern Canon Law, Volume 2) (Catholic University of America Press 1993) para C.6.

[8] Thomas Aquinas, The Summa Theologiae of St. Thomas Aquinas (2nd edn, Burns Oates & Washbourne 1920) II-II q.95 a.4 .

[9] Barney and others (n 4) para iv.

[10] ibid.

[11] Gratian and others (n 9) CC.6-7 .

[12] Suarez and Pink (n 6) 51–52.

[13] ibid.

[14] Aquinas (n 10) I-II Q.94 a.2 .

[15] ibid I-II Q.94 a.4 .

[16] ibid.

[17] ibid I-II q.95 a.4 .

[18] Suarez and Pink (n 6) 405–406.

[19] Aquinas (n 10) I-II q.95 a.4 .

[20] Suarez and Pink (n 6) 407.

[21] Barney and others (n 4) 119; Gratian and others (n 9) para C.2.

[22] Aquinas (n 10) I-II q.90 a.4 .

[23] Suarez and Pink (n 6) 102.

[24] Namely Chapter VII in ‘On Laws and God the Lawgiver’ see ibid 102 et seq.

[25] ibid 102.

[26] Aquinas (n 10) I-II, q.95 a2.

[27] Gratian and others (n 9) para D.8.

[28] ibid D.9.

[29] Augustine of Hippo, On the Free Choice of the Will, On Grace and Free, and Other Writings (Cambridge University Press 2010) I.5.11.33.

[30] Suarez and Pink (n 6) 22–23.

[31] Aquinas (n 10) I:II Q.96 a.4 .

[32] Suarez and Pink (n 6) 137; See to similar effect De Soto (n 6) 150–151; Aquinas (n 10) I-II q.96 a.4.

[33] Suarez and Pink (n 6) 137; Cf re unjust commands Robert Bellarmine, On Temporal and Spiritual Authority (Stefania Tutino tr, Liberty Fund 2012) 402.

[34] Bracton on the Laws and Customs of England (Thorne, 1977) vol 2 p22.

[35] ibid 26–29.

[36] ibid 22.

[37] John Fortescue and Thomas Fortescue Clermont, The Works of Sir John Fortescue, Knight, Chief Justice of England and Lord Chancellor to King Henry the Sixth (London : Printed for private distribution 1869) 193–194.

[38] ibid 400.

[39] ibid 401.

[40] ibid 222.

[41] ibid 402.

[42] Christopher Saint Germain, Doctor and Student: Or, Dialogues Between a Doctor of Divinity and a Student in the Laws of England; Containing the Grounds of Those Laws, Together with Questions and Cases Concerning the Equity Thereof (James Moore 1792) 5.

[43] Germain (n 44) First dialogue Chapter II.

[44] ibid 10.

[45] ibid 13.

[46] ibid 10.

[47] ibid 6.

[48] ibid.

[49] Sir Edward Coke, The Selected Writings and Speeches of Sir Edward Coke, vol Two (Steve Sheppard ed, Liberty Fund 2003) 1146.

[50] ibid.

[51] Matthew Hale, ‘Some Chapters Touching the Law of Nature’ (2014) 17 Journal of Markets and Morality 4 et seq.

[52] ibid 263.

[53] ibid 310–311.

[54] ibid 295.

[55] William Blackstone, Commentaries on the Laws of England: In Four Books (Clarendon Press 1770) bk I p41.

[56] Aquinas (n 10) I-II q.100 a.8.

[57] Blackstone (n 57) 42–43.

[58] ibid 91.

[59] See generally William P Quigley, ‘Five Hundred Years of English Poor Laws, 1349-1834: Regulating the Working and Nonworking Poor’ (1997) 30 Akron Law Review 64.

[60] The Parish of St Gile’s in Reading v The Parish of Eversly, Blackwater (1722) 88 ER 124.

[61] ibid 125.

[62] The King and the Inhabitants of Paulsperry (1727) 1 Barn KB 11.

[63] Hopkins, Ex parte (1732) 24 ER 1009.

[64] ibid.

[65] ibid.

[66] ibid 1009.

[67] Dalrymple v Dalrymple (1811) 161 ER 665.

[68] ibid 669.

[69] Butler v Gastrill (1721) 25 ER 110, 110.

[70] The Queen v Barnardo (1891) 1 QB 194.

[71] ibid 207.

[72] Calvin’s Case (1608) 1 Co Rep 1a.

[73] ibid 379 et seq.

[74] ibid 391–392.

[75] ibid 392.

[76] ibid.

[77] ibid 394.

[78] ibid 407.

[79] ibid 394.

[80] Thomas v Sorrell (1673) 124 ER 1098.

[81] Hale’s Case (1682) 89 ER 370.

[82] Thomas v Sorrell (n 82) 1100.

[83] Hale’s Case (n 83) 370.

[84] Thomas v Sorrell (n 82) 1103.

[85] Aquinas (n 10) I-II q.97 a.4.

[86] ibid I-II q.100 a.8.

[87] Bonham’s Case (1610) 77 ER 646.

[88] ibid 652.

[89] See for example Germain (n 44) 2.

[90] Day v Savadge (1614) 80 ER 235.

[91] ibid 237.

[92] Carolyn A Edie, ‘Revolution and the Rule of Law: The End of the Dispensing Power, 1689’ (1977) 10 Eighteenth-Century Studies 434.

[93] Theodore FT Plucknett, ‘Bonham’s Case and Judicial Review’ (1926) 40 Harvard Law Review 30.

[94] The Etna (1838) 1 Ware 462.

[95] ibid 808–809.

[96] ibid 804.

[97] ibid 807.

[98] Wightman v Wightman (1820) 4 Johns Ch 343.

[99] ibid 348–349.

[100] ibid 350; Cf Samuel Sutton v Thomas B Warren (1845) 10 Metcalf 451.

[101] Edward D Moore v Joseph Hegeman (1883) 92 NY 521, 524.

[102] Patricia Martinez v County of Monroe (2008) 50 AD3d 189.

[103] Heath and Wife v White (1824) 5 Conn 228.

[104] ibid 4.

[105] Schmidt v Schmidt (1949) 195 Misc 366.

[106] ibid 368.

[107] Vanhorne;s Lessee v Dorrance (1795) 2 Dall 304.

[108] ibid 310.

[109] Ex parte the South Carolina Rail Road Company (1846) 2 Rich 434.

[110] ibid 437.

[111] ibid.

[112] Pascal Surocco v John W Geary (1853) 3 Cal 69.

[113] ibid 73.

[114] Bowditch v Boston (1879) 101 US 16.

[115] ibid 18–19.

[116] People ex rel O’Connell v Turner (1870) 55 III 280.

[117] ibid 284.

[118] ibid.

[119] ibid 287–288.

[120] Coger v The North West Union Packet Co (1873) 37 Iowa 145.

[121] ibid 154.

[122] Barney and others (n 4) 119; Gratian and others (n 9) para C.2.

[123] The Holy Bible, Douey-Rheims Version (John Murphy Company 1899) Matthew 22:38.

[124] Suarez and Pink (n 6) 102.

[125] Barney and others (n 4) 119; Gratian and others (n 9) para C.2.